Chandra, Neeraj v Tecyss,It Recruitment
[2009] VCC 1235
•16 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.
| NEERAJ CHANDRA | Plaintiff |
| v | |
| TECYSS IT RECRUITMENT | Defendant |
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| JUDGE: | His Honour Judge Coish |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 September 2009 |
| DATE OF JUDGMENT: | 16 September 2009 |
| CASE MAY BE CITED AS: | Chandra, Neeraj v. Tecyss,It Recruitment |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1235 |
REASONS FOR JUDGMENT
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.R. Moore QC Ms N. Wolski | |
| For the Defendant | Mr J.L. Parrish SC Ms D.E. Galbally | |
| HIS HONOUR: |
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 in respect of injury to the low back the plaintiff alleges occurred in the course of his employment in or about April 2005.
2 The plaintiff alleges that the low back injury involving disc injury in the lumbar spine and referred pain into the left leg is a serious injury within the meaning of paragraph (a) of the definition of serious injury. The relevant body function in which there has been impairment or loss is the lower back with a consequential effect on the left leg. The application is in respect of both pain and suffering and loss of earning capacity.
3 There is no dispute that the plaintiff suffered compensable low back injury in April 2005 involving disc injuries in the lumbar spine and referred pain into the left leg. There is also no dispute that there is permanent impairment or loss of body function of the low back as a result of this injury, and that impairment or loss of body function is "serious" with respect to pain and suffering. The only issue in dispute is whether it is "serious" with respect to loss of earning capacity.
4 The onus of proof is on the plaintiff.
5 I have had regard to s.134AB(38)(h) which provides:
"The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise."
6 I am familiar with and have had regard to the series of recent Court of Appeal decisions on s.134AB commencing with Barwon Spinners Pty Ltd & Ors v. Podolak.
7 The plaintiff and his general practitioner Dr Kiley gave evidence. The plaintiff's court book containing affidavits, medical and other reports and miscellaneous documentation was tendered on his behalf. The defendant's court book containing claim forms, medical certificates, medical reports, rehabilitation documents and employer documents was tendered on its behalf. This was a very sensible course to adopt in view of the limited issue in dispute.
8 The plaintiff is 24 years of age, having been born on 5 October 1984. He completed his secondary school Year 12 in 2002. Whilst a student the plaintiff did some part-time work at McDonalds. In early 2003 the plaintiff commenced employment with the defendant, a labour hire firm. He worked at the Dandenong depot of Vic Express. He was a casual employee. He worked approximately 27 to 28 hours per week. His duties were physically demanding.
9 In April 2005 the plaintiff injured his low back in the course of his employment. He was off work for approximately two to three days, then returned to work on reduced hours performing modified duties. A CT scan of the plaintiff's back was undertaken on 16 May 2005 and the plaintiff was referred to Mr Xenos, neurosurgeon, on 26 May 2005.
10 The plaintiff had physiotherapy and hydrotherapy treatment. On 9 June 2005 the plaintiff underwent an MRI scan. He discussed the possibility of spinal surgery with Mr Xenos on 7 July 2005 but it was agreed he would continue with conservative treatment.
11 The plaintiff's hours of work increased from four to six hours per day until December 2005 when he ceased work as there were no more modified duties available for him. When he ceased work he was working approximately 25 to 28 hours per week.
12 In 2006 the plaintiff attended courses at the Victorian Rehabilitation Centre. In late 2006 he undertook a one-day course at Chisholm TAFE in bar work. The plaintiff had a further MRI scan on 23 May 2008. In the plaintiff's third affidavit he stated that he did not consider his pre-injury employment to be a future career, rather he was interested in ultimately working as a plasterer as he considered it to be a reliable and interesting job, and many of his friends and acquaintances worked as plasterers.
13 In his affidavits the plaintiff stated that he has constant low back pain and intermittent left leg pain. His symptoms interfere with his activities of daily living and social and recreational activities. He has become anxious and depressed. His sleep is disturbed because of pain. The plaintiff described difficulties he experiences sitting, standing, walking and driving a motor vehicle.
14 In cross-examination he said his daily routine involves sleeping in until approximately midday, exercising, spending short periods of time using his computer and visiting friends. He rarely goes out at night to nightclubs or other venues. Although the plaintiff has applied for various jobs he did not consider that he had any capacity for work.
15 The plaintiff's treating general practitioner Dr Kiley gave evidence. In his three reports tendered in evidence he expressed the opinion that the plaintiff had a capacity for modified alternative duties. In his report dated 27 May 2008 Dr Kiley stated:
"With regard to Neeraj's fitness for work, he is not fit for pre-injury employment. His current restrictions require him to avoid repetitive lifting, bending and twisting. He is fit for alternative duties that do not include these activities."
16 Doctor Kiley expressed the following further opinions:
"With regard to prognosis, I believe it is likely that Neeraj will continue to be quite restricted in his capacity as mentioned above, and his pain is likely to remain fairly constant at least for a number of years.
With regards to degree of disability related to the original work injury, the consequence of this injury is that Neeraj has been unable to work since the time of the injury more or less. He has chronic back pain with significant limitations to the amount of lifting and bending he can do, and it also affects his ability to sit for long periods.
He has not been able to find employment since the time of the injury. There are obviously significant psychosocial consequences of this injury also. I believe he is suffering a degree of depression related to his difficult situation and pain."
17 In his report dated 6 January 2009 Dr Kiley expressed similar opinions. He stated:
"With regard to fitness for work, Neeraj is not fit for his pre-injury duties and he is never likely to be. He is fit for alternative duties. He would need to graduate into full-time work, and the restrictions that would apply would be that he would need to avoid repetitive lifting, bending and twisting. He would not be suitable for lifting greater than five kilograms and he would need to be able to walk and change positions as needed."
18 Doctor Kiley stated:
"With regards to prognosis, obviously things may change if Neeraj decides to undergo a surgical procedure but currently I believe that Neeraj's condition is likely to remain stable. He is likely to have periods of back pain. He is likely to be restricted with lifting in the physical work that he can perform. His current status has persisted for a number of years now and I believe it is likely to be permanent.
The degree of disability related to the original work-related injury, this is hard to define and there are experts who do this in accordance with a written formula. In my opinion Neeraj has suffered significant disability both physical and emotional. He is a young man who was employed in a labour-intensive type of industry. He is no longer able to undertake his pre-injury employment and has not worked since. This restricts his lifestyle in many ways.
He has also suffered significant emotional and psychological consequences from this injury, and I believe he suffers a degree of depression which further complicates his situation, and I do not think his mental state is making it any easier for him to get work."
19 Doctor Kiley has been providing WorkCover certificates in which he has expressed the opinion that the plaintiff is "fit for modified duties" with these work restrictions: "Light duties up to five kilograms, some lifting okay, avoid repetitive bending, twisting."
20 In evidence-in-chief and cross-examination Dr Kiley was much more pessimistic in his assessment of the plaintiff's work capacity. He said the plaintiff's capacity was very limited as he cannot really lift at all, he cannot do any bending or twisting and he cannot sit or stand for very long. Doctor Kiley was of the opinion that if the plaintiff was able to work at all it would only be for a few hours a day.
21 In cross-examination Dr Kiley explained that he was continuing to provide modified duties WorkCover certificates as he was trying to give the plaintiff the opportunity to apply for light work. He was asked about his opinions on the plaintiff's work capacity contained in his report dated 6 January 2009 which I have referred to and he said, in response to the proposition, that this opinion was consistent with the WorkCover certificates he had been providing:
"Yes, that's right, and if I have the benefits of the WorkCover system to protect my worker to gradually get him back to work, to put him off if I need to, to graduate him as I see fit and to go backwards or forwards with his hours as necessary, then that may apply but that's not the situation here."
22 Doctor Kiley acknowledged that the plaintiff's psychosocial issues adversely affected the likelihood of the plaintiff getting a job. He said:
"I think the combination of the restrictions of his back and the consequent psychosocial issues, particularly lowered mood and depression, make him unlikely to get a job."
23 He said that if the plaintiff was not depressed it might make it easier for him to get work, he might be more motivated.
24 Doctor Kiley did however confirm in re-examination that it was the plaintiff's organic injury which in his opinion prevented the plaintiff doing any manual jobs and prevented him sitting or standing for any length of time. Therefore in his opinion there were very few if any roles the plaintiff could perform as a result of his physical injury. The overall thrust of Dr Kiley's oral evidence was that as a result of this physical injury the plaintiff had no capacity for employment and this had become clear to him with the passage of time.
25 Mr Xenos has provided two reports. As he is the plaintiff's treating neurosurgeon I shall set out his opinions in some detail. Mr Xenos first saw the plaintiff upon a referral from Dr Kiley on 26 May 2005. At that stage the plaintiff had low back pain and left leg pain.
26 Mr Xenos noted that the CT scan demonstrated stenosis at the L4-5 level due to a diffuse central and predominantly left-sided L4-5 disc prolapse. He was of the opinion that this correlated well with the plaintiff's symptoms, although he noted the L5-S1 disc space also looked slightly degenerate.
27 Mr Xenos organised an MRI examination of the lumbar spine on 9 June 2005. This demonstrated an eight-millimetre central disc extrusion at the L4-5 level. It was causing compression to the exiting left L5 nerve root. In addition there was also a disc extrusion at the L5-S1 level which was displacing the S1 nerve roots but not compressing the L5 nerve roots.
28 Mr Xenos thought that the L4-5 disc prolapse was the one that was causing more neurological compromise on the radiology and he felt it was the cause of the plaintiff's sciatica. Mr Xenos discussed the possibility of spinal surgery with the plaintiff, however it was agreed that the plaintiff would continue with conservative treatment.
29 Mr Xenos reviewed the plaintiff on 13 December 2007. At that time he was uncertain whether the clinical condition had become worse. The plaintiff still complained of back pain and left leg pain. Mr Xenos felt it appropriate to organise a repeat MRI scan. This was undertaken on 23 May 2008. The repeat MRI scan demonstrated a moderate to large left posterolateral disc protrusion at the L4-5 level deforming the spinal theca and causing mild stenosis. It was causing lateral recess stenosis and significant compression to the left L5 nerve.
30 Mr Xenos was of the opinion that the radiology had progressed. He remained of the opinion that the L5 compression on the left was causing the plaintiff's left leg pain. There was also posterior diffuse disc bulging at the L5-S1 level causing mild lateral recess stenosis. However Mr Xenos was of the opinion that this was a minor complaint which was possibly contributing to the plaintiff's back pain rather than his leg pain.
31 Mr Xenos reviewed the plaintiff again on 26 June 2008. The plaintiff's clinical condition had stabilised. He still had persistent pain in the low back with pain and numbness in the left leg. Mr Xenos discussed the recent MRI scan findings with the plaintiff. It was his opinion that the plaintiff had exhausted conservative measures and if the plaintiff wanted something done to alleviate his leg pain surgical intervention with a left L4-5 and L5-S1 discectomy and spinal rhizolysis would be appropriate. The pros and cons of that surgical intervention were considered.
32 Mr Xenos expressed the following opinion in relation to the plaintiff's capacity for work:
"In the meantime his current chronic pain situation is stabilised and persists, and I do not see him being appropriate to consider pre-injury employment, and importantly if the current situation continues and he decides against surgery, despite him having physiotherapy and hydrotherapy I cannot see him returning to any meaningful employment since simply prolonged standing and sitting in his current position will cause a flare-up in his back pain."
33 The plaintiff has been assessed for medico-legal purposes by a large number of doctors at the request of both his solicitors and the defendant. The plaintiff's solicitors have organised medico-legal consultations with Mr Flanc, Professor Cook and Mr Love.
34 Mr Flanc in reports dated 8 September 2008 and 7 April 2009 has expressed the opinion that the plaintiff has a theoretical capacity to cope with light part- time work. He was of the opinion that the plaintiff would be able to cope with four hours work on alternate days hence 12 hours per week. Professor Mark Cook in a report dated 11 October 2008 and in a supplementary letter dated 16 April 2009 considered the plaintiff's capacity for work. He was of the opinion that the plaintiff was not fit for his pre-injury duties. He felt it was unlikely that the plaintiff would find suitable work in alterative duties in the foreseeable future. He did feel that once the medical complaint had settled it might be appropriate for him to be re-skilled in another area.
35 Mr Love was of the opinion that the plaintiff remained unfit for his pre-injury employment and was not fit for any alternative duties for which he was reasonably skilled or trained. These opinions were expressed in a report dated 19 March 2009.
36 The defendant obtained the following medico-legal opinions. Mr David Chamberlain in a report dated 19 January 2009 was of the opinion that the plaintiff had a capacity for lighter work only, he was not fit for full pre-injury duties.
37 Dr Yong in a report dated 7 June 2006 was of the opinion that the plaintiff was not fit for his pre-injury duties. He recommended the following restrictions in terms of work activity: "Maximum lifting of ten kilograms. Avoid repeated bending and twisting of the back."
38 Dr Yong was of the opinion that the plaintiff had a capacity for suitable duties. He recommended a graduated return to work plan.
39 Mr Gerald Moran in a report dated 17 December 2007 was of the opinion that the plaintiff was not fit for his pre-injury duties. He was of the opinion that the plaintiff was permanently fit only for light duty employment, work not involving repeated bending and/or heavy lifting and work in which he has the flexibility to sit or stand as pain dictates.
40 Dr Chris Baker in a report dated 28 April 2008 was of the opinion that the plaintiff was capable of undertaking work which did not require him to undertake repeated bending or lifting at more than ten kilograms from floor to waist height and at waist height he considered he could lift around 15 kilograms from bench to bench. He was of the opinion that the plaintiff should not undertake work which required him to undertake repeated lifting or repeated twisting or maintaining of fixed flexed posture for long periods of time.
41 Dr Baker was of the opinion that the plaintiff did have a work capacity but this was restricted. He considered the plaintiff to have been an intelligent personable young man who would benefit from vocational assessment and retraining options.
42 Mr Michael Dooley in a report dated 18 February 2009 was of the opinion that from the orthopaedic view point the plaintiff was capable of carrying out light physical work and clerical duties. He was also of the opinion that the plaintiff was physically capable of participating in rehabilitation, retraining and re- education.
43 A number of reports concerning the plaintiff's attempts at rehabilitation in 2006 were tendered in evidence. The plaintiff seems to have participated in the various programs arranged for him in the early stages of his rehabilitation however by about October 2006 there are comments in these reports that the plaintiff had lost his motor vehicle driver's license and had not taken full advantage of the job seeking assistance that had been made available to him. The plaintiff was not cross-examined about these matters and there is little detail in the reports. I have accordingly placed no weight upon these comments.
44 Although each side has obtained vocational assessments I do not consider it necessary to summarise that material having regard to my findings on the plaintiff's injury and physical capacity for employment.
45 It was submitted on behalf of the defendant that the plaintiff was incapacitated for his pre-injury employment but had a capacity for a wide range of light work and accordingly did not satisfy the serious injury test in respect of loss of earning capacity. It was submitted on behalf of the plaintiff that he was totally incapacitated and would remain so for the foreseeable future and accordingly did satisfy the serious injury test with respect to loss of earning capacity.
46 Each party made submissions on the scheme in the Act with respect to a worker who was under 26 years of age. Having regard to my detailed findings of fact which cover all the issues raised in s.134AB19(b), 38(b), (c), (e) and (g) it is not necessary for me to determine these matters. I have accepted for the purposes of these findings of fact the submissions made on behalf of the defendant that the plaintiff must satisfy not only the "very considerable" test in s.134AB38(c) but also the statutory requirements in s.134AB38(e)(i) and (ii) and 38(g) in respect of loss of earning capacity.
47 I found the plaintiff to have been a straightforward reliable and truthful witness. There was no attack upon his credit in cross-examination. Insofar as it was submitted that the plaintiff was lacking in motivation I do not accept this criticism of him. The plaintiff has a basic Year 12 education. He was injured when he was only 20 years of age. He has had very little experience in the workforce. The severity of his injury has meant that he has been regularly reviewed by his general practitioner and treating neurosurgeon and he has been extensively investigated. He has in my opinion participated in all treatment regimes suggested of him. He remains in chronic pain. I do not accept that his relative inactivity and somewhat passive and reserved manner ought be held against him as demonstrating a lack of motivation. As Dr Kiley stated:
"I wouldn't say he's not interested in getting work but he's not a, you know, he's not a sort of a - Neeraj doesn't have that get out there and get into it sort of personality."
48 I accept the plaintiff's evidence on the nature of his injury and its effects upon him. I find that the plaintiff has chronic low back pain which is very severe at times together with intermittent pain, numbness and cramps in the left leg. I accept the plaintiff's evidence that his symptoms prevent him sitting or standing for long periods. The plaintiff's weight has increased since he injured his back as he is much less physically active. There is some wasting in the left leg.
49 It was accepted by the defendant that the plaintiff's pain and suffering was "serious", that is the pain and suffering consequence may be fairly described as "very considerable." This was in my opinion both an appropriate and an important admission particularly when analysing the medical opinions on the plaintiff's capacity for work.
50 The comments of Chernov JA in Sumbul v. Melbourne All Toya Wreckers Pty Ltd (2006) V.S.C.A. 292 at paragraph 24 are in my opinion relevant. Chernov JA stated:
"If one accepts as Her Honour did that the appellant is physically able to return to alternative employment then unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury it would ordinarily be difficult to conclude that the pain and suffering consequences of it are 'at least very considerable'."
51 The situation before me is effectively the reverse of that scenario.
52 I accept the plaintiff's evidence that at times his symptoms are so severe that he must rest and is unable to undertake physical activity. In my opinion it was understandable that the plaintiff was quite pessimistic in his assessment of his ability to work given his level of back and leg symptoms.
53 Of all the medical evidence presented I found the plaintiff's treating neurosurgeon's opinions to have been of the most assistance to me. Mr Xenos has seen the plaintiff on a number of occasions. He has carefully analysed the CT and MRI scans. I accept his opinion that the plaintiff has no capacity for "meaningful employment." I accept his opinion that prolonged standing and sitting will cause a flare-up in the plaintiff's back pain.
54 I found Dr Kiley to have been a straightforward and conscientious GP. I reject the submission made on behalf of the defendant that Dr Kiley had become an advocate for the plaintiff rather than an impartial expert witness. I accept his explanation that he has been providing modified duties WorkCover certificates to enable the plaintiff to have an opportunity to attempt to apply for a broad selection of jobs.
55 I accept Dr Kiley's opinions that the plaintiff cannot lift heavy weights, bend or engage in repetitive tasks, he cannot sit or stand for long periods, and he will experience periods of severe pain when he will not be able to undertake physical activity at all. I accept that this restrictions are organically based. Doctor Kiley stated that his opinions about the plaintiff's capacity for work were "along the same lines in fact" as Mr Xenos.
56 As there has been reference to psychosocial factors, I have been careful to exclude any psychological or psychiatric consequences of the physical injury from consideration. I accept these treating doctors' opinions in preference to all the medico-legal consultants engaged by each party as in my opinion these treating doctors are best placed to have observed and assessed the plaintiff over the years since his injury.
57 Having regard to these opinions and the plaintiff's evidence on the nature and extent of his symptoms and his inability to work, I find the plaintiff is and will remain permanently and totally incapacitated for work, therefore there is a total and permanent loss of earning capacity.
58 In view of these findings of fact it is unnecessary to consider the various amounts of earnings referred to by the parties in their submissions of loss of earning capacity. It is also unnecessary to analyse the voluminous material provided by the so-called vocational experts engaged by each side.
59 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment, and the extent of such inability.
60 The plaintiff did participate in rehabilitation in 2006. He has undergone all treatment recommended by his doctors. Having regard to the level of his symptoms and the nature of his injury and the opinions of his treating doctors, Dr Kiley and Mr Xenos, I find that the plaintiff has discharged this onus.
61 I therefore, having considered the consequences to the plaintiff of the impairment or loss of body function with respect to loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of body function, am satisfied that such impairment or loss of body function has resulted in loss of earning capacity consequences which is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable, s.134AB(38)(c).
62 I am satisfied at this date the plaintiff has a loss of earning capacity of 40 per cent or more, and the plaintiff will after this date continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more, s.134AB(38)(e)(i) and (ii).
63 I find the plaintiff does not have a capacity for any employment which if exercised would result in the plaintiff earning more than 60 per cent of gross income from personal exertion had the injury not occurred pursuant to s.134AB(38)(g).
64 The plaintiff has therefore established the relevant loss of earning capacity required pursuant to ss.134AB(38)(b), (e), (f) and (g). Accordingly I grant leave to the plaintiff to bring proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of the injury sustained in the course of his employment in or about April 2005.
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